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July 03, 2003

Equal Protection

I was all set to kick off the restart of the blog with a discussion of overstretch on the part of the Supreme Court. With their decision that it's OK to discriminate on the basis of race in Grutter v. Bollinger and their assessment of private sexual acts as protected under the Fourteenth Amendment in Lawrence v. Texas, it seemed a no-brainer to point to last week's decisions as further evidence of the shift of government power from the Constitution to the vagaries of the Supreme Court. And Grutter alone still stands as an excellent example of this, but I'd first like to examine Lawrence a little more closely.

The basis of the majority in Lawrence, as I understand it, (and I'm not a lawyer), is that Texas violated the Fourteenth Amendment rights of the defendants with its law banning sodomy. This is not because a state law banning sodomy is unconstitutional, but because the law is now only applied against homosexual conduct, and therefore violates their rights to equal protection under the law. While I am sympathetic to Justice Scalia's note that the majority in Lawrence seemed indifferent to the doctrine of stare decisis here after basing their case on that principle in Planned Parenthood v. Casey, the hypocracy of those justices does not invalidate their ruling in this case. The facts of the case are what are at issue here, and I'm not sure the majority doesn't have a case.

Despite the ruling in Grutter, the Fourteenth Amendment makes it clear that government should treat citizens equally. The Amendment lays it out clearly: no person can be denied the equal protection of the law. Although I cannot prove this, I'm willing to bet that the vast majority of prosecutions under sodomy statues are used to punish homosexual conduct. Because the Texas statute does not apply strictly to homosexual conduct, but to all sodomy, such application means the law is not being applied equally among all citizens; homosexuals are not receiving equal protection under this law. Therefore, the Court was probably correct in nullifying the statute.

Now for the bad news. I cannot find anything in the Constitution that would make a law banning sodomy unconstitutional, nor even a law banning homosexual sodomy. Lawrence was correct because a general law was applied only in specific cases, violating the principle of equal protection. A state law that was specifically tailored to make homosexual sex illegal would not be unconstitutional, because there is no right to consensual sex in the Constitution. Note that I do not believe this is how the Court would interpret this. Yet it does matter, because it speaks to the question of the slippery slope many conservatives are concerned about. If the Court has not formally created a right to consensual private sex, but only invalidated statutes because they are not applied in accordance with the Fourteenth Amendment, this decision cannot be used to nullify laws outlawing incest, for example, because these laws are not being applied in a discriminatory manner. [UPDATE: See below for correction/clarification of this.] The line has moved farther than conservatives may have liked, but I'm not convinced that Senator Santorum's observations were accurate yet.

I'm reasonably confident that the Court made the correct decision in Lawrence. I'm equally confident the Court did so for the wrong reasons: a desire to 'set things right' rather than a desire to get the decision right. That desire will continue to undermine the foundations of government and the Constitution. But in this case, despite my initial impressions, it now appears the Court got one right in spite of themselves.

This is not intended to endorse the more general actions of the Court, which are to rule based on their personal feelings rather than the law. I may take up that topic again at a later date. But in this case, it appears that the Court's instincts were congruent with the law, at least in my own analysis. It's possible that my own belief that sex is a private activity that should not be regulated by government may have affected my assessment here, but I don't believe so, as my initial impression of the case was that the Court had once again substituted belief for law, but in examining the case I changed my mind to arrive at this assessment.

UPDATE: Mindles Dreck has some observations about what the Constitution is vs. what we would like it to be over at Asymmetrical Information.

UPDATE: Kenneth G. Cavness of Cogicophony takes me to task for misstating the facts of the case regarding the Fourteenth Amendment. Although I think his initial criticism misunderstood the thrust of my argument, I did catch a separate factual error while fact-checking the criticism. Texas' statue did apply only to homosexual sodomy only, yet was still invalidated under Lawrence. This error of fact did confirm my speculation regarding the Court's probably action in such cases, but also weakens my argument that Lawrence cannot be used to attack other cases on consensual private sex. Conversely, the Court's willingness to rule based on personal belief rather than the law suggests there will not be a Constitutional right to incest in the near future.